Balancing disability

Labour & European Law ReviewWeekly Issue 40825 February 2015

When considering whether discrimination is a proportionate means of achieving a legitimate aim, the Employment Appeal Tribunal (EAT) held in Burdett v Aviva Employment Services Ltd that tribunals must provide clear reasons in complex and sensitive cases when balancing the needs of the employer against those of the employee.

Basic facts

Mr Burdett, who was diagnosed with a paranoid schizophrenic illness in 2007, was disabled within the meaning of section 6(1) of the Equality Act 2010. In early 2008, he received a police caution after sexually assaulting members of the public but did not tell his employer. At some point in 2010 he stopped taking his medication. In April 2011 he sexually assaulted two female work colleagues, a female member of the public and threatened to assault an independent contractor of the employer. He was arrested and detained under the Mental Health Act.

After being sentenced at Norwich Crown Court and put on the sex offenders’ register, his employer started disciplinary proceedings. By this stage, they were aware of the police caution which he had received in 2008. Mr Burdett did not dispute the allegations in respect of his conduct but explained that this was due to a serious error of judgment because he stopped taking his medication. The employer decided that he had admitted to the gross misconduct and the only appropriate sanction was dismissal.

Mr Burdett brought a number of claims, including unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010.

Relevant law

Section 15 states that it is discrimination if someone treats a disabled person unfavourably “because of something arising in consequence of” their disability and they cannot show that it was a proportionate means of achieving a legitimate aim.

Tribunal decision

The tribunal said that, as Mr Burdett had admitted the gross misconduct, very little investigation was needed as the company had reasonable grounds for its belief. The dismissal was, therefore, “quite clearly fair”.

In relation to the claim of discrimination arising from disability, Mr Burdett’s employer agreed that the dismissal constituted “unfavourable treatment”. The tribunal decided, however, that it was proportionate for the company to dismiss him in order to achieve the “very real and legitimate aim of adhering to appropriate standards of conduct in the workplace”.

EAT decision

The EAT disagreed, however, holding that the tribunal needed to do more than just consider that Mr Burdett had committed the acts in question. It also had to ask whether there were reasonable grounds for concluding that he had done so wilfully or in a grossly negligent way given that Mr Burdett had admitted a serious error of judgment. As the tribunal had failed to do so the decision that his dismissal was fair could not stand.

With regard to the discrimination claim, the EAT held that the tribunal had failed to engage with the possible alternative options open to the company, such as home-working and whether that would reduce the risk. Instead, it focused on the company’s need to demonstrate that it was taking a serious approach to Mr Burdett’s conduct and the impact that it would have on other members of staff.

The EAT held that in circumstances where “the balancing exercise raises issues of particular complexity and sensitivity, it is especially important that the reasons provided are clear”. As the tribunal had failed to provide them, the EAT also allowed the appeal against the decision that dismissal was a proportionate response to a legitimate aim.

Comment

Although the facts of this case are unusual, this is yet another decision following Brito-Babapulle v Ealing Hospital NHS Trust (weekly LELR 338 for the EAT decision; the Court of Appeal decision will appear in 411) which reminds employers that dismissal for gross misconduct is not automatic. Employers must consider whether the conduct amounts to deliberate wrongdoing or gross negligence before taking the decision to dismiss for gross misconduct.